A while back I wrote about this frustrating practice lawyers were training California employees to follow:

Years ago, in Ventura County California (where I am thankfully no longer doing business), a loyal employee approached our manager and told her of a meeting that had been held the night before for our employees at a local attorney's office. The attorney was holding the meeting mainly because he was trying to drum up business, brainstorming with my employees how they might sue the company for a variety of fanciful wage and hour violations. Fortunately, we tend to be squeaky clean on labor compliance, and the only vulnerable spot they found was on California break law, where shifting court decisions gave them an opening to extract a bit of money from the company over how we were managing lunch breaks.

Anyway, in the course of the meeting, the attorney apparently advised our employees that if they ever thought they were about to get fired, they should quickly accuse someone in the company of harassment or discrimination or some other form of law-breaking. By doing so, they made themselves suddenly much more difficult to fire, and left the company open to charges of retaliation if the company did indeed fire them. In later years, we saw at least two employees at this location file discrimination or harassment claims literally hours before they were to be terminated for cause. Since then, I have seen this behavior enough, all over the country, to believe that this is a strategy that is frequently taught to employees.

So now we have the James Damore / Google memo brouhaha, of which I generally choose not to comment except to say that it is worth skimming the memo and comparing its contents to how it is portrayed in the press just to see how unreliable the media is. However, I wanted to note this bit (gated WSJ):

But before his firing, Mr. Damore had complained to the National Labor Relations Board about superiors “misrepresenting and shaming me.” Now he is arguing that his dismissal constitutes retaliation. This is a stretch, since the labor board’s purview doesn’t extend to individual workplace disputes. But Mr. Damore could still try to take Google to court.

It is going to get super-tedious if every employee starts lobbing in an 11th hour government complaint when they are anticipating termination just to set up grounds for a retaliation claim. Except in the case of grievous fire-on-the-spot misdeeds, it is generally good practice to give employees warnings of poor performance and potential termination so they have a chance to correct such behavior. Terminations can certainly stressful and disappointing and aggravating, but they shouldn't be a surprise. But perhaps in the future this may change and ambush firings will become the norm to avoid this kind of thing.

Years ago, in Ventura County California (where I am thankfully no longer doing business), a loyal employee approached our manager and told her of a meeting that had been held the night before for our employees at a local attorney's office. The attorney was holding the meeting mainly because he was trying to drum up business, brainstorming with my employees how they might sue the company for a variety of fanciful wage and hour violations. Fortunately, we tend to be squeaky clean on labor compliance, and the only vulnerable spot they found was on California break law, where shifting court decisions gave them an opening to extract a bit of money from the company over how we were managing lunch breaks.

Anyway, in the course of the meeting, the attorney apparently advised our employees that if they ever thought they were about to get fired, they should quickly accuse someone in the company of harassment or discrimination or some other form of law-breaking. By doing so, they made themselves suddenly much more difficult to fire, and left the company open to charges of retaliation if the company did indeed fire them. In later years, we saw at least two employees at this location file discrimination or harassment claims literally hours before they were to be terminated for cause. Since then, I have seen this behavior enough, all over the country, to believe that this is a strategy that is frequently taught to employees.

This terrible advice is obviously frustrating not only because it makes the firing process harder, but also because these charges all still have to be investigated seriously, a time-consuming process that has to involve me personally by our rules. On at least two occasions that I can remember, we delayed a firing for cause by several weeks to complete investigations into what turned out to be bogus charges, only to have the employee do something really stupid in a customer reaction during these extra weeks that had substantial costs for the company.

Anyway, I was thinking about this in the case of Colin Kaepernick, the NFL quarterback currently employed by the 49ers but expected by many to be released (ie fired) in the coming weeks. Last weekend he stirred up controversy when he refused to stand for the national anthem to protest treatment of blacks in America. Personally, I barely noticed, as I am not a big fan of enforced loyalty oaths and patriotic rituals, finding these to historically be markers of unfree societies. For these sorts of rituals to have any meaning at all, they have to be voluntary, which means that Kaepernick has every right to not participate, and everyone else has every right to criticize him for doing so, and I have the right to ignore it all as tedious virtue-signalling.

I mostly yawn and change the channel over all this, but it did make me wonder -- Kaepernick has to know that he is potentially on the chopping block. Many folks believe that his performance last year was not good enough to earn a job on the 49ers this year. It has been discussed on national TV for weeks, and probably for months in the local San Francisco market. If he were to be cut, it would likely be in the next 7 days or so by the schedule the NFL sets for finalizing rosters. So I wonder if part of Kaepernick's action the other day was to make it harder to fire him. He and his supporters can now portray his firing as retaliation for his support of Black Lives Matters, something that would be an uncomfortable perception for any high profile organization in America but particularly in San Francisco.